On September 25, the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on the Employment Section of the Justice Department’s Civil Rights Division. The hearing focused on the prosecution of employment discrimination cases within the section.
“Today we will examine a number of cases in which the department seems to have gone against established civil rights policy, or even turned its back on consent decrees to which it had committed itself,” said Chair Jerrold Nadler (D-NY). He continued, “The Justice Department’s Employment Litigation Section is mandated to enforce Title VII of the Civil Rights Act of 1964 [P.L. 88-352] and various other civil rights laws that prohibit employment discrimination…When those charged with fighting discrimination fail to do so, the government provides tacit support for discrimination…[t]he promise of our nation’s civil right laws is only met when the Justice Department applies them aggressively and in an even-handed fashion.”
Ranking Member Trent Franks (R-AZ) said, “The litigation handled by the Section is of national importance, as it speaks to the principles that define America’s kindness and compassion. Its attorneys are to be commended for their tireless dedication to enforcing the law, which extends to every corner of complex litigation, from investigations to filing motions, from settlement negotiations to trials, and from the monitoring and enforcement orders to the securing of remedial relief.” Rep. Franks continued, “I am particularly pleased that the Employment Section appears to be putting appropriate resources into the prosecution of religious discrimination cases.”
Asheesh Agarwal, deputy assistant attorney general for the Civil Rights Division at the Department of Justice, said: “The Civil Rights Division’s Employment Litigation Section is responsible for one vital aspect of Title VII enforcement: discrimination by public employees. Pursuant to Section 707 of Title VII, the attorney general has authority to bring suit against a state or local government where there is reason to believe that a ‘pattern or practice’ of discrimination exists…We have filed or authorized three pattern or practice cases thus far in FY2007…In FY2006, we filed three complaints alleging a pattern or practice of employment discrimination.” In describing one such case, Mr. Agarwal said, “In United States v. Southern Illinois University, the Division challenged under Title VII three paid graduate fellowship programs that were open only to students who were either of a specified race or national origin, or who were female. While denying that it violated Title VII, the university admitted that it limited eligibility for, and participation in, the paid fellowship programs on the basis of race and sex. The case was resolved by a consent decree approved by the court on February 9, 2006.”
Mr. Agarwal added, “In FY2006, the Division obtained settlement agreements or consent decrees in six cases alleging a pattern or practice of discrimination. One example is a pattern or practice case the division brought against the state of Ohio and the Ohio Environmental Protection Agency. We reached a consent decree on September 5, 2006, that accommodated employees with religious objections to supporting the public employee’s union. The consent decree permits objecting employees to direct their union fees to charity.”
He continued, “The division also actively enforces Section 706 of Title VII [employment discrimination based upon disparate treatment]…thus far in FY2007, the division has filed nine other lawsuits under Section 706…In [United States v.] Spartanburg [County South Carolina], we alleged discrimination on the basis of sex against a former female employee.”
In describing the Justice Department’s handling of her employment discrimination case, Janet Caldero of New York said, “In 1992, I was hired as a provisional custodian. Being provisional means that you have no job security. Many of the women and minorities who worked as custodians back then were hired provisionally.” Ms. Caldero continued, “It was about the time I was hired that the Justice Department began to investigate the New York City Board of Education’s hiring practices for custodians. In 1996, after several years of investigation, the Justice Department sued the Board of Education. The lawsuit alleged the Board’s hiring practices discriminated against women and minorities…In about 2000, I learned that the Justice Department and the Board of [Education] had settled the lawsuit, and the Board…had agreed to extend permanent employment and retroactive seniority to women and minorities who had been hired provisionally.” Ms. Caldero added, “Then, in 2002…I got a call from an American Civil Liberties Union lawyer. She told me that the Justice Department had changed its position and was no longer defending parts of the settlement in the face of the white male custodians’ attacks, including the awards to me and most of the other female beneficiaries. I didn’t believe her. I had heard nothing from the Justice Department.”
Jocelyn Frye, general counsel for the National Partnership for Women and Families, expressed concerns about the Employment Section’s “de-emphasis of longstanding enforcement policies,” saying, “While we do not have access to the precise breakdown of charges referred by the EEOC [Equal Employment Opportunity Commission] to DOJ [Department of Justice], it would be reasonable to expect race and gender discrimination claims to comprise a significant portion of both EEOC referrals and the complaints filed by the Employment Section. But a different trend has emerged over the past six and one-half years. Available data reveal far fewer race discrimination cases alleging a pattern or practice of discrimination against African Americans, and fewer gender discrimination cases alleging a pattern or practice of discrimination against women. Indeed, the Employment Section did not initiate a pattern or practice case alleging race discrimination against African Americans until last year. The Section filed two pattern or practice cases alleging race discrimination against white men, one in 2005 and one in 2006, before it initiated the case alleging discrimination against African Americans. And, according to the complaints listed on its website, the Section has filed the same number of pattern or practice cases alleging discrimination against men as it has filed alleging such discrimination against women.” Ms. Frye continued, “These numbers raise serious concerns, but not because the Section is enforcing Title VII’s protections for different groups…Rather, these numbers are disconcerting because they suggest a lack of attention to pattern or practice cases on behalf of African Americans and women, groups that historically have filed the largest percentage of Title VII complaints.”
Richard Ugelow, a practitioner in residence at the Washington College of Law at American University, and Eric Dreiband, a partner at Akin Gump Strauss Hauer and Feld, also testified.
